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Apr 16, 2009
Isabel Davies, CMS Cameron McKenna LLP, Uk
Tom Scourfield, CMS Cameron McKenna LLP, UK

Advocate General’s opinion in perfume smell-alike case


Isabel Davies, CMS Cameron McKenna LLP, Uk, Tom Scourfield, CMS Cameron McKenna LLP, UKAdvocate General Mengozzi has given a controversial opinion in L'Oréal SA and others v Bellure NV and others, Case C-487/07, after a reference to the ECJ from the Court of Appeal. The Advocate General dealt with issues of trade mark infringement under the Trade Marks Directive ('TM Directive'), and comparisons under the Misleading and Comparative Advertising Directive ('the CAD') in connection with various copycat “smell-alike” perfumes. Under the TM Directive, the Advocate General stated that use of L'Oréal's marks in comparative advertising only constitutes infringement if it affects the essential function of the marks. The functions are wider in scope than merely the indication of origin, but the Advocate General acknowledged that case law has yet to define the extent. Also, when a trader uses similar packaging to a well known mark which gives a 'boost' to his product because of the link, that 'boost' will be unfair when there is no 'due cause' for use of the mark. If due cause can be shown, the national court must decide whether or not the use is unfair on the facts. Under the CAD, the Advocate General made two points. First, it is not unfair advantage for a trader simply to compare his product with another well known mark in a comparison list. If there is an advantage, and the public associate the advertiser's products with the competitor's reputation, the national court must decide whether it is unfair on the facts. Secondly, an advertiser can state that his product shares an essential characteristic of a competing product, but must not explicitly refer to imitating or copying a competitor's product.  read more